The Bluebook now includes a citation format for social media. A recent Texas Supreme Court opinion spent four pages weighing the validity of a Texas Court of Appeal’s use of a Wikipedia definition. The U.S. Supreme Court archives internet sources cited in its opinions on its website. With authoritative internet sources proliferating and legal blogs gaining in popularity, citing to web-based sources in legal writing is on the rise. Traditional, print authorities still dominate, but the exceptions to that rule continue to grow. If you are considering using a web-based authority in your legal writing, consider these 5 tips:
1. Know your Audience
Regardless of increased scholarly acceptance of web-based sources, this is an area to proceed into with caution in you legal writing. Not all professors, journal editors, or judges are “forward-leaning” on this issue. Along the lines of “the judge is always right,” your legal writing professor will be giving out grades. If you know the inclusion of a web-based source will be frowned upon, even if it provides great support in your mind, it may be best to avoid it.
2. If There is an Alternative, Use It
Traditional sources are still seen as more authoritative. If you could cite a bona fide law review article or a law blog, choose the law review article every time. If you cannot find a printed version of an authority, don’t give up and cite an inferior online source right away. Put in some research effort. If your efforts fail, consult your law librarian for help.
Also, remember that even if it is on the web, scanned print sources can be cited as traditional print sources. Bluebook rule 18.2.1(a) explains: “When an authenticated, official, or exact copy of a source is available online, citation can be made as if to the original print source (without any URL information appended).” This rule goes on to define “authenticated documents,” “official versions,” and “exact copies.” Sources like HeinOnline or Google Books that provide such resources allow you to cite traditional sources with the convenience of an online resource.
3. Use Web-based Sources Intentionally
Don’t cite to a website out of mere convenience. Black’s Law or Wikipedia? Black’s Law. But, for example, if Black’s Law doesn’t cover some technical term relating to the legal treatment of Bitcoin, maybe an online source would be more acceptable in that context. Along with context, practicality can be a factor. Even Bluebook rule 18.2.1(b)(i) acknowledges that in the interest of getting the reader to the cited authority, you should add a URL to a web-based version of a traditional authority if the traditional source is “so obscure as to be practically unavailable.” Be able to defend each use of a web-based source as necessary and unavoidable.
4. Bluebook them Correctly
If you are going to use a web-based source, you will win more leniency from a skeptical reader if you cite it correctly. Reference Bluebook rule 18. The Bluebook edition you use may generally not matter too much, but in this area, be sure to reference the 20th edition. Many of the updates to the 20th edition revolved around citing internet and computer based sources in an authoritative manner.
One interesting addition was Bluebook rule 18.2.1(d), which explains how to cite archival versions of a web link. Tools now exist to create an archival URL that (in theory) capture a web page as it was when you referenced it and make it available indefinitely, even if the underlying web-based authority you cited goes away. Under rule 18.2.1(d), you can just add your permanent archival URL in brackets after any full web-based cite that includes a standard URL. One example the Bluebook uses is a “perma.cc.” link—a tool created for scholars in an attempt to prevent “link rot.” Read more about this method of archiving your web sources at perma.cc.
5. Use them Sparingly
A paper with footnotes full of websites will not be taken very seriously. And footnotes full of URLs will be long and ugly. If you follow the tips above, web-based sources should not be a major component of your cited authority. As a part of the final review of your legal writing, make sure you are not citing too much web-based authority. If a web-based authority is not wholly necessary, cull as many URLs as possible. Even if the cites are warranted, your reader may be turned off by web-based sources cluttering your more traditional authorities.
The question of relying on web-based sources in the legal field will be a live issue for the foreseeable future. As the legal profession tackles this modern trend, proceed with caution. Hopefully applying these tips will help you to harness the power of the web without compromising the persuasiveness of your legal writing.
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